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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of Walter Olenick and M. Rae Nadler-Olenick Austin, Texas )
) ) ) ) File No.: EB-FIELDSCR-13-00010527 NAL/Acct. No.: 201432540001 FRN:
0023366628
FORFEITURE ORDER
Adopted: June 3, 2014 Released: June 3, 2014
By the Regional Director, South Central Region, Enforcement Bureau:
I. INTRODUCTION
1. We impose a penalty of $15,000 against Walter Olenick and M. Rae
Nadler-Olenick for operating an unlicensed FM radio station on 90.1
MHz in Austin, Texas. Mr. and Mrs. Olenick do not deny that they
operated the unlicensed FM radio station after receipt of a written
warning from the Enforcement Bureau that such action was illegal.
Instead, Mr. and Mrs. Olenick assert without any support that they are
not subject to the jurisdiction of the Commission. We reject these
arguments, however, and order Mr. and Mrs. Olenick to pay the monetary
penalty.
2. Specifically, in this Forfeiture Order (Order), we issue a monetary
forfeiture in the amount of fifteen thousand dollars ($15,000) to Mr.
and Mrs. Olenick for willfully and repeatedly violating Section 301
of the Communications Act of 1934, as amended (Act).^ The noted
violations involved Mr. and Mrs. Olenick's operation of an unlicensed
radio transmitter.
II. BACKGROUND
3. On February 19, 2014, the Enforcement Bureau's Houston Office (Houston
Office) issued a Notice of Apparent Liability for Forfeiture (NAL) ^
to Mr. and Mrs. Olenick for operating an unlicensed radio transmitter
in Austin, Texas.^ As reflected in the NAL, on August 12 and November
19, 2013, agents from the Houston Office determined that an unlicensed
radio station was operating on the frequency 90.1 MHz from Mr. and
Mrs. Olenick's apartment building in Austin, Texas.^ The radio signals
were emanating from an antenna mounted atop a large tower attached to
the apartment building, and cables ran from that antenna into what
appeared to be a non-residential room, such as a utility or
maintenance room.^ On September 6, 2013, the Houston Office issued
Mr. and Mrs. Olenick a written warning letter, which advised them that
the operation of an unlicensed radio station on the frequency 90.1 MHz
from their property violated the Act.^
4. In response to the NAL, Mr. and Mrs. Olenick asserted that they had no
"commercial nexus" with the Commission and were not subject to the
Commission's rules and regulations.^ Specifically, Mr. and Mrs.
Olenick's NAL Response stated that they "specifically deny that [they]
are fiduciaries to anyone or anything for which any part of Title 47
is now or has ever been part of any trust indenture or agreement."^
They also admitted to owning the tower^ and do not deny operating the
unlicensed radio station.^
III. DISCUSSION
5. The proposed forfeiture amount in this case was assessed in accordance
with Section 503(b) of the Act,^ Section 1.80 of the Commission's
rules (Rules),^ and the Forfeiture Policy Statement.^ In examining Mr.
and Mrs. Olenick's NAL Response, Section 503(b)(2)(E) of the Act
requires that the Commission take into account the nature,
circumstances, extent, and gravity of the violation and, with respect
to the violator, the degree of culpability, any history of prior
offenses, ability to pay, and other such matters as justice may
require.^
6. We affirm the NAL's finding that Mr. and Mrs. Olenick violated Section
301 of the Act.^ Section 301 of the Act states that no person shall
use or operate any apparatus for the transmission of energy or
communications or signals by radio within the United States.^
Specifically, Section 301 of the Act prohibits communications "from
one place in any State, Territory, or possession of the United States
or in the District of Columbia to another place in the same State,
Territory, possession, or District," or from one place within a State
to another State, except under and in accordance with the Act and with
a license granted under the provisions of the Act.^ Thus, Section 301
of the Act explicitly sets forth the Commission's jurisdiction over
all radio transmissions, both interstate and intrastate.^ It is
undisputed that Mr. and Mrs. Olenick operated an unlicensed radio
station on the frequency 90.1 MHz from their apartment building in
Austin, Texas. Although Mr. and Mrs. Olenick appear to question the
Commission's jurisdiction over this matter because they claim that
they have no "commercial nexus" with the Commission, Section 301
explicitly sets forth the Commission's jurisdiction over all radio
transmissions and does not limit the Commission's authority to
situations where a "commercial nexus," however defined, is present.
Thus, contrary to the Olenicks' assertion, the Commission does not
lack jurisdiction over the use of radio transmitting equipment within
the State of Texas. Therefore, based on the evidence before us, we
conclude that Mr. and Mrs. Olenick willfully and repeatedly violated
Section 301 of the Act by operating radio transmission equipment
without the required Commission authorization. We also caution Mr. and
Mrs. Olenick that continued unlicensed operations may result in
additional sanctions, including higher forfeitures, equipment
seizures, and criminal prosecution.
IV. ORDERING CLAUSES
7. Accordingly, IT IS ORDERED that, pursuant to Section 503(b) of the
Act, and Sections 0.111, 0.204, 0.311, 0.314, and 1.80(f)(4) of the
Rules, Walter Olenick and M. Rae Nadler-Olenick ARE JOINTLY AND
SEVERALLY LIABLE FOR A MONETARY FORFEITURE in the amount of fifteen
thousand dollars ($15,000) for violations of Section 301 of the Act.^
8. Payment of the forfeiture shall be made in the manner provided for in
Section 1.80 of the Rules within thirty (30) calendar days after the
release date of this Order.^ If the forfeiture is not paid within the
period specified, the case may be referred to the U.S. Department of
Justice for enforcement of the forfeiture pursuant to Section 504(a)
of the Act.^ Mr. and Mrs. Olenick shall send electronic notification
of payment to SCR-Response@fcc.gov on the date said payment is made.
9. The payment must be made by check or similar instrument, wire
transfer, or credit card, and must include the NAL/Account Number and
FRN referenced above. Regardless of the form of payment, a completed
FCC Form 159 (Remittance Advice) must be submitted.^ When completing
the FCC Form 159, enter the Account Number in block number 23A (call
sign/other ID) and enter the letters "FORF" in block number 24A
(payment type code). Below are additional instructions you should
follow based on the form of payment you select:
* Payment by check or money order must be made payable to the order of
the Federal Communications Commission. Such payments (along with the
completed Form 159) must be mailed to Federal Communications
Commission, P.O. Box 979088, St. Louis, MO 63197-9000, or sent
via overnight mail to U.S. Bank - Government Lockbox #979088,
SL-MO-C2-GL, 1005 Convention Plaza, St. Louis, MO 63101.
* Payment by wire transfer must be made to ABA Number 021030004,
receiving bank TREAS/NYC, and Account Number 27000001. To complete
the wire transfer and ensure appropriate crediting of the wired funds,
a completed Form 159 must be faxed to U.S. Bank at (314) 418-4232 on
the same business day the wire transfer is initiated.
* Payment by credit card must be made by providing the required credit
card information on FCC Form 159 and signing and dating the Form 159
to authorize the credit card payment. The completed Form 159 must then
be mailed to Federal Communications Commission, P.O. Box 979088, St.
Louis, MO 63197-9000, or sent via overnight mail to U.S. Bank -
Government Lockbox #979088, SL-MO-C2-GL, 1005 Convention Plaza, St.
Louis, MO 63101.
10. Any request for full payment over time under an installment plan
should be sent to: Chief Financial Officer--Financial Operations,
Federal Communications Commission, 445 12th Street, S.W., Room 1-A625,
Washington, D.C. 20554.^ If you have questions regarding payment
procedures, please contact the Financial Operations Group Help Desk by
phone, 1-877-480-3201, or by e-mail, ARINQUIRIES@fcc.gov.
11. IT IS FURTHER ORDERED that a copy of this Order shall be sent by both
First Class and Certified Mail, Return Receipt Requested, to Walter
Olenick and M. Rae Nadler-Olenick at their address of record.
FEDERAL COMMUNICATIONS COMMISSION
Dennis P. Carlton
Regional Director, South Central Region
Enforcement Bureau
^ 47 U.S.C. S 301.
^ Walter Olenick and M. Rae Nadler-Olenick., Notice of Apparent Liability
for Forfeiture, 29 FCC Rcd 1658 (Enf. Bur. 2014) (NAL). A comprehensive
recitation of the facts and history of this case can be found in the NAL
and is incorporated herein by reference.
^ Id. at 1658-59, paras. 2, 4.
^ Id. at 1658, para. 2.
^ Id. at 1659, para. 3.
^ Letter from Walter and M. Rae Nadler-Olenick to Stephen Lee, Resident
Agent, Houston Office, South Central Region, Enforcement Bureau (Mar. 5,
2014) (on file in EB-FIELDSCR-13-00010527) (NAL Response).
^ Id. at 5.
^ Probable Cause Affidavit filed by M. Rae Nadler-Olenick at 2 (rec. Mar.
10, 2014) (on file in EB-FIELDSCR-13-00010527). Mr. and Mrs. Olenick also
allege that agents from the Houston Office trespassed on their property.
NAL Response at 2. However, the agents did not enter the Olenicks'
property and were able to determine that radio transmissions were
emanating from an antenna mounted on an approximately 50-foot tall tower
and observe a coaxial cable running from the antenna into what appeared to
be a maintenance room from outside the Olenicks' property.
^ Mr. and Mrs. Olenick deny any responsibility for any "account" or "FRN"
numbers. NAL Response at 4. The Enforcement Bureau generated a NAL Account
Number for EB-FIELDSCR-13-00010527 for tracking purposes. Similarly, the
Enforcement Bureau obtained a FRN for Mr. and Mrs. Olenick to track any
forfeiture payments made by them regarding this matter.
^ 47 U.S.C. S 503(b).
^ 47 C.F.R. S 1.80.
^ The Commission's Forfeiture Policy Statement and Amendment of Section
1.80 of the Rules to Incorporate the Forfeiture Guidelines, Report and
Order, 12 FCC Rcd 17087 (1997), recons. denied, 15 FCC Rcd 303 (1999)
(Forfeiture Policy Statement).
^ 47 U.S.C. S 503(b)(2)(E).
^ See NAL supra note 2.
^ 47 U.S.C. S 301.
^ Id.
^ See Joseph Frank Ptak, Decision, 14 FCC Rcd 9317, 9320, para. 13 (1999)
(affirming the Commission's jurisdiction over unauthorized radio
transmissions in Texas and all unauthorized intrastate transmissions); see
also U.S. v. Butterfield, 91 F.Supp.2d 704 (D. Vt. 2000) (holding that all
persons who intend to broadcast by radio must have an FCC license, whether
or not such broadcasts are intended to be interstate or intrastate).
^ 47 U.S.C. SS 301, 503(b); 47 C.F.R. SS 0.111, 0.204, 0.311, 0.314,
1.80(f)(4).
^ 47 C.F.R. S 1.80.
^ 47 U.S.C. S 504(a).
^ An FCC Form 159 and detailed instructions for completing the form may be
obtained at http://www.fcc.gov/Forms/Form159/159.pdf.
^ See 47 C.F.R. S 1.1914.
Federal Communications Commission DA 14-764
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Federal Communications Commission DA 14-764